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In Michigan, state law requires stringent procedural obligations be satisfied before an injured patient or family member can file a medical malpractice case. The victim, with the help of an experienced medical malpractice attorney, must file a detailed notice of intent 182 days prior to filing the actual lawsuit. Then, the plaintiff must submit even more comprehensive affidavits of merit from qualified experts, which substantiate the plaintiff’s claim. These requirements were passed by the legislature to serve two purposes: to give potential defendants a chance to investigate and potentially settle a claim, and to eliminate frivolous complaints. Unfortunately, the law has had another, more insidious effect – legitimate medical malpractice claims are regularly dismissed on what amounts to a loophole.

The goal of the civil justice system, generally speaking, is to allow parties to have a jury determine their cases on the merits. Rigid formalities increase the cost of pursuing malpractice claims and have a chilling effect on the ability of victims to find a lawyer who is willing to help them. When those formalities are used to dismiss an otherwise strong case, the injured patient or family member is victimized yet again.

We have all seen public outrage when a so-called “technicality” allows an accused perpetrator to avoid responsibility for his or her alleged (or even admitted) criminal conduct. Where is the outrage when a technicality allows a doctor (really his malpractice insurance company) to avoid paying fair and adequate compensation for injuring a patient?

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